Holy Constitutional Law, Batman.

* DOJ – Office of Legal Counsel memos

* NYT (3/3)
* LAT (3/3)
* links to the memos with brief annotations at salon.com

* Jack Balkin @ Balkinization (3/3 7am)
* Scott Horton @ Harper’s (3/3 716am)
* Dan Froomkin @ the Washington Post (3/3 12:52 pm)
* Glenn Greenwald, 3/3

Obama halts all regulations pending review

17 hours ago AP 2009/01/20

WASHINGTON (AP) — One of President Barack Obama’s first acts is to order federal agencies to halt all pending regulations until his administration can review them.

The order went out Tuesday afternoon, shortly after Obama was inaugurated president, in a memorandum signed by new White House chief of staff Rahm Emanuel. The notice of the action was contained in the first press release sent out by Obama’s White House, and it came from deputy press secretary Bill Burton.

The waning days of former President Bush’s administration featured much debate over what rules and regulations he would seek to enact before he left office.

(also? i loved that whitehouse.gov flipped over right about noon. badgerbag tells me that the old robots.txt was like 2500 lines long, but the one is only a couple of lines long. heh.)

But no such compromise is possible so long as Roe v. Wade and Planned Parenthood v. Casey remain on the books. These decisions are monuments to pro-choice absolutism, and for pro-lifers to accept them means accepting that no serious legal restrictions on abortion will ever be possible — no matter what the polls say, and no matter how many hearts and minds pro-lifers change.

Wow. Where to begin.

In his op-ed, Douthat describe’s the anti-choice’s movement’s move to promote restrictions rather than outright bans is a “compromise”, rather than simply a strategy to get around a fundamental constitutional right that has widespread popularity.

He attempts to lay claim to some members of the right’s attention to issues other than abortion as compromise. (If so, then one would expect — but be disappointed by — the general failure on the right to describe as “compromises” the pro-choice movement’s ongoing attention to directly-related issues such as providing birth control education, birth control, and full reproductive care, including overturning of the hateful Mexico City policy; allied issues like women’s healthcare, AIDS/HIV prevention, needle swapping programs; and a wide swath of other social justice programs commonly found in the portfolio and donation lists of pro-choice activists.)

The waning of anti-abortion terroristic violence is apparently also a sign of the larger movement’s compromise. This doesn’t quite square with the movement’s apologists’ earlier claims that the terrorists were exceptional. But when signs of compromise on the extremist wings of your movement are in short supply, you take what you can get, I suppose.

Unbelievably, he lays claim for the anti-choice movement scientific progress in stem cell research, attempting to use scientific progress to justify his movement’s anti-science rhetoric:

As for the movement’s supposed antipathy to science and social change — well, no doubt you’ll find more believers in young-earth creationism or divinely ordained patriarchy at a pro-life rally than you would at the Harvard Faculty Club. But here, too, the easy stereotypes are increasingly detached from reality.

He conveniently ignores the ideologically-driven “abstinence-only” sex education curricula, ad the propensity of his movement to work against not just “abortion” but all birth control. I’m not sure how he manages to describe as “increasingly divorced from reality” (italics mine) the steadily increasing push toward science ignorance manifest in the creationist- cum- intelligent design movement. Or the general censorship and manipulation of scientific data and research programs that the “culture of life” Bush Administration has offered us.

And finally, to top it all of, he describes Roe and Casey as “monuments to pro-choice absolutism”. Apparently he has never read Roe, or else feels no qualms in distorting it utterly, since Roe embodies compromise in every particle of the decision. Between a woman’s right to control her own body, and the State’s interest in the life of unborn children, Justice Blackmun took the common division of pregnancy into three trimesters, and established a compromise system that simply mandated a minimum of respect for women’s ability to control their own bodies in certain circumstances. (Well, with their physicians, of course. *eye rolling* ) In the first trimester, a woman’s right is paramount. In the second trimester, the State has a good bit more leeway to regulate abortion. And in the third trimester, when the fetus is potentially viable, the State has significant rights to curtail abortion, save only to protect the mother’s life or health. (Or, as John McCain put it so memorably in “derisive air quotes”, “health”. Samantha Bee, The Daily Show.

Casey of course was yet another attempt to chart a compromise, allowing all the restrictions that anti-choicers had been pushing, so long as they do not place an “undue burden” on the woman’s right to choose. In practice “undue burdens” must be pretty “undue” indeed, as women in large swathes of the country have no ready access to abortion at any time, but must travel, sometimes out of state, be delayed, lied to, frightened, and otherwise manipulated.

The Presidential pardoning power can be and should be used for humanitarian reasons — for mercy, or for justice, when for whatever reason those are not available through ordinary means. There’s also a good argument for using it for “national reconciliation” — e.g., pardoning the Viet Nam draft dodgers, or (gag) pardoning Nixon. (Those situations are clearly distinguishable, obviously, but even though I firmly disagree with the Nixon pardon, it’s a reasonable argument.)

But the pardoning power should not be available for use to eliminate responsibility for one’s own misdeeds, and for members of the government that includes actions committed on orders. Members of the government already receive a wide variety of protections for “following orders”. Use of the Presidential pardon power to pardon those who followed one’s own illegal orders is the worst kind of self-dealing, and it places the President above the law. Since “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” it’s clear that impeachment for such crimes was envisioned. Yet pardoning one’s underlings for their illegal activities render it virtually impossible to prosecute the superior that ordered the actions — the President thus protects himself from any such impeachment or other prosecution.

It’s regularly stated that the Presidential pardon power is “plenary” and virtually unlimited, but there must be some level of absurdity. Can the President pardon himself for, say, ordering the massacre of Congress and the suspension of the Constitution? Or bribe an investigative commission and then pardon himself for doing so? Well, yeah. Bush I showed us that they can, with his Iran-Contra pardons. So here we go again. There is just no fucking justice or accountability for members of this administration. God that makes me angry.

update 2/28: See, this is why I should save my wrath until after the fact. I could have used it so much more effectively ….

god I’m tired. 460 more days is a very long time.

update: Ahem. Apparently that’s Keith Olbermann, and Kent Brockman. Another sign of aging, because I would never ordinarily confuse the grey/blonde Simpson’s reporter with the grey/blonde MSNBC reporter.